STATE OF OKLAHOMA

2nd Session of the 52nd Legislature (2010)

SENATE BILL 1721	By:	Wilson

AS INTRODUCED

An Act relating to insurance; amending 36 O.S. 2001, Section 4405, which relates to accident and health policy provisions; eliminating time limit for certain defenses; providing exception for fraudulent misstatements; and providing an effective date.

BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1.     AMENDATORY     36 O.S. 2001, Section 4405, is amended to read as follows:
Section 4405.  A.  Required Provisions.  Except as provided in subsection D of this section, each such policy delivered or issued for delivery to any person in this state shall contain the provisions specified in this subsection in the words in which the same appear in this section; provided, however, that the insurer may, at its option, substitute for one or more of such provisions corresponding provisions of different wording approved by the Insurance Commissioner which are in each instance not less favorable in any respect to the insured or the beneficiary.  Such provisions shall be preceded individually by the caption appearing in this subsection or, at the option of the insurer, by such appropriate individual or group captions or subcaptions as the Insurance Commissioner may approve.
1.  A provision as follows:  ENTIRE CONTRACT; CHANGES:  This policy, including the endorsements and the attached papers, if any, constitutes the entire contract of insurance.  No change in this policy shall be valid until approved by an executive officer of the insurer and unless such approval be endorsed hereon or attached hereto.  No agent has authority to change this policy or to waive any of its provisions.
2.  A provision as follows:  TIME LIMIT ON CERTAIN DEFENSES:
(a) After two (2) years from As of the date of issue of this policy, no misstatements, except willfully fraudulent misstatements, made by the applicant in the application for such policy shall be used to void the policy or to deny a claim for loss incurred or disability (as defined in the policy) commencing after the expiration of such two‑year period.  The foregoing policy provision shall not be so construed as to affect any legal requirement for avoidance of a policy or denial of a claim during such initial two‑year period, nor limit the application of paragraphs 1, 2, 3, 4 and 5 of subsection B of this section in the event of misstatement with respect to age or occupation or other insurance.  A policy which the insured has the right to continue in force subject to its terms by the timely payment of premium (i) until at least fifty (50) years of age or, (ii) in the case of a policy issued to a person older than forty‑four (44) years of age, for at least five (5) years from its date of issue, may contain in lieu of the foregoing the following provisions (from which the clause in parentheses may be omitted at the insurer's option) under the caption "Incontestable".  After this policy has been in force for a period of two (2) years during the lifetime of the insured (excluding any period during which the insured is disabled), it shall become incontestable as to the statements contained in the application.
(b) No claim for loss incurred or disability (as defined in the policy) commencing after two (2) years from the date of issue of this policy shall be reduced or denied on the ground that a disease or physical condition not excluded from coverage by name or specific description effective on the date of loss had existed prior to the effective date of coverage of this policy.
3.  A provision as follows:  GRACE PERIOD:
(a) A grace period of ______ (insert a number not less than "7" for weekly premium policies, "10" for monthly premium policies and "31" for all other policies) days will be granted for the payment of each premium falling due after the first premium, during which grace period the policy shall continue in force.
(b) A policy in which the insurer reserves the right to refuse renewal shall have, at the beginning of the above provision, "Unless not less than thirty (30) days prior to the premium due date the insurer has delivered to the insured or has mailed to his last address as shown by the records of the insurer written notice of its intention not to renew this policy beyond the period for which the premium has been accepted."
4.  A provision as follows:  REINSTATEMENT:
(a) If any renewal premium be not paid within the time granted the insured for payment, a subsequent acceptance of premium by the insurer or by any agent duly authorized by the insurer to accept such premium, without requiring in connection therewith an application for reinstatement, shall reinstate the policy; provided, however, that if the insurer or such agent requires an application for reinstatement and issues a conditional receipt for the premium tendered, the policy will be reinstated upon approval of such application by the insurer or, lacking such approval, upon the forty‑fifth day following the date of such conditional receipt, unless the insurer has previously notified the insured in writing of its disapproval of such application.  The reinstated policy shall cover only loss resulting from such accidental injury as may be sustained after the date of reinstatement and loss due to such sickness as may begin more than ten (10) days after such date.  In all other respects the insured and insurer shall have the same rights thereunder as they had under the policy immediately before the due date of the defaulted premium, subject to any provisions endorsed hereon or attached hereto in connection with the reinstatement.  Any premium accepted in connection with a reinstatement shall be applied to a period for which premium has not been previously paid, but not to any period more than sixty (60) days prior to the date of reinstatement.
(b) The last sentence of the above provision may be omitted from any policy which the insured has the right to continue in force subject to its terms by the timely payment of premiums (i) until at least fifty (50) years of age or, (ii) in the case of a policy issued to a person older than forty‑four (44) years of age, for at least five (5) years from its date of issue.
5.  A provision as follows:  NOTICE OF CLAIM:
(a) Written notice of claim must be given to the insurer within twenty (20) days after the occurrence or commencement of any loss covered by the policy, or as soon thereafter as is reasonably possible. Notice given by or on behalf of the insured or the beneficiary to the insurer at ______ (insert the location of such office as the insurer may designate for the purpose), or to any authorized agent of the insurer, with information sufficient to identify the insured, shall be deemed notice to the insurer.
(b) In a policy providing a loss‑of‑time benefit which may be payable for at least two (2) years, an insurer may, at its option, insert the following between the first and second sentences of the above provision:  Subject to the qualifications set forth below, if the insured suffers loss of time on account of disability for which indemnity may be payable for at least two (2) years, he shall, at least once in every six (6) months after having given notice of claim, give to the insurer notice of continuance of said disability except in the event of legal incapacity.  The period of six (6) months following any filing of proof by the insured or any payment by the insurer on account of such claim or any denial of liability in whole or in part by the insurer shall be excluded in applying this provision.  Delay in the giving of such notice shall not impair the insured's right to any indemnity which would otherwise have accrued during the period of six (6) months preceding the date on which such notice is actually given.
6.  A provision as follows:  CLAIM FORMS:  The insurer, upon receipt of a notice of claim, will furnish to the claimant such forms as are usually furnished by it for filing proofs of loss.  If such forms are not furnished within fifteen (15) days after the giving of such notice, the claimant shall be deemed to have complied with the requirements of this policy as to proof of loss upon submitting, within the time fixed in the policy for filing proofs of loss, written proof covering the occurrence, the character and the extent of the loss for which claim is made.
7.  A provision as follows:  PROOFS OF LOSS:  Written proof of loss must be furnished to the insurer at its said office in case of claim for loss for which the policy provides any periodic payment contingent upon continuing loss within ninety (90) days after the termination of the period for which the insurer is liable and in case of claim for any other loss within ninety (90) days after the date of such loss.  Failure to furnish such proof within the time required shall not invalidate nor reduce any claim if it was not reasonably possible to give proof within such time, provided such proof is furnished as soon as reasonably possible and in no event, except in the absence of legal capacity, later than one (1) year from the time proof is otherwise required.
8.  A provision as follows:  TIME OF PAYMENT OF CLAIMS: Indemnities payable under this policy for any loss other than loss for which this policy provides any periodic payment will be paid immediately upon receipt of due written proof of such loss.  Subject to due written proof of loss, all accrued indemnities for loss for which this policy provides periodic payment will be paid______ (insert period for payment which must not be less frequently than monthly) and any balance remaining unpaid upon the termination of liability will be paid immediately upon receipt of due written proof.
9.  A provision as follows:  PAYMENT OF CLAIMS:
(a) Indemnity for loss of life will be payable in accordance with the beneficiary designation and the provisions respecting such payment which may be prescribed herein and effective at the time of payment.  If no such designation or provision is then effective, such indemnity shall be payable to the estate of the insured.  Any other accrued indemnities unpaid at the insured's death may, at the option of the insurer, be paid either to such beneficiary or to such estate.  All other indemnities will be payable to the insured.
(b) The following provisions, or either of them, may be included with the foregoing provision at the option of the insurer: If any indemnity of this policy shall be payable to the estate of the insured, or to an insured or beneficiary who is a minor or otherwise not competent to give a valid release, the insurer may pay such indemnity, up to an amount not exceeding $______ (insert an amount which shall not exceed One Thousand Dollars ($1,000.00)), to any relative by blood or connection by marriage of the insured or beneficiary who is deemed by the insurer to be equitably entitled thereto.  Any payment made by the insurer in good faith pursuant to this provision shall fully discharge the insurer to the extent of such payment.
Subject to any written direction of the insured in the application or otherwise, all or a portion of any indemnities provided by this policy on account of hospital, nursing, medical, or surgical services may, at the insurer's option and unless the insured requests otherwise in writing not later than the time of filing proofs of such loss, be paid directly to the hospital or person rendering such services; but it is not required that the service be rendered by a particular hospital or person.
10.  A provision as follows:  PHYSICAL EXAMINATION, AUTOPSY:
The insurer at its own expense shall have the right and opportunity to examine the person of the insured when and as often as it may reasonably require during the pendency of a claim hereunder and to make an autopsy in case of death where it is not forbidden by law.
11.  A provision as follows:  LEGAL ACTIONS:  No action at law or in equity shall be brought to recover on this policy prior to the expiration of sixty (60) days after written proof of loss has been furnished in accordance with the requirements of this policy.  No such action shall be brought after the expiration of three (3) years after the time written proof of loss is required to be furnished.
12.  A provision as follows:  CHANGE OF BENEFICIARY:  Unless the insured makes an irrevocable designation of beneficiary, the right to change of beneficiary is reserved to the insured and the consent of the beneficiary or beneficiaries shall not be requisite to surrender or assignment of this policy or to any change of beneficiary or beneficiaries, or to any other changes in this policy.
The first clause of this provision, relating to the irrevocable designation of beneficiary, may be omitted at the insurer's option.
B.  Other provisions.  Except as provided in subsection D of this section, no such policy delivered or issued for delivery to any person in this state shall contain provisions respecting the matters set forth below unless such provisions are in the words in which the same appear in this section; provided, however, that the insurer may, at its option, use in lieu of any such provision a corresponding provision of different wording approved by the Insurance Commissioner which is not less favorable in any respect to the insured or the beneficiary.  Any such provision contained in the policy shall be preceded individually by the appropriate caption appearing in this subsection or, at the option of the insurer, by such appropriate individual or group captions or subcaptions as the Insurance Commissioner may approve.
1.  A provision as follows:  CHANGE OF OCCUPATION:  If the insured be injured or contract sickness after having changed his occupation to one classified by the insurer as more hazardous than that stated in this policy or while doing for compensation anything pertaining to an occupation so classified, the insurer will pay only such portion of the indemnities provided in this policy as the premium paid would have purchased at the rates and within the limits fixed by the insurer for such more hazardous occupation.  If the insured changes his occupation to one classified by the insurer as less hazardous than that stated in this policy, the insurer, upon receipt of proof of such change of occupation, will reduce the premium rate accordingly, and will return the excess pro rata unearned premium from the date of change of occupation or from the policy anniversary date immediately preceding receipt of such proof, whichever is the more recent.  In applying this provision, the classification of occupational risk and the premium rates shall be such as have been last filed by the insurer prior to the occurrence of the loss for which the insurer is liable or prior to date of proof of change in occupation with the state official having supervision of insurance in the state where the insured resided at the time this policy was issued; but if such filing was not required, then the classification of occupational risk and the premium rates shall be those last made effective by the insurer in such state prior to the occurrence of the loss or prior to the date of proof of change of occupation.
2.  A provision as follows:  MISSTATEMENT OF AGE:  If the age of the insured has been misstated, all amounts payable under this policy shall be such as the premium paid would have purchased at the correct age.
3.  A provision as follows:  OTHER INSURANCE IN THIS INSURER:
If an accident or health or accident and health policy or policies previously issued by the insurer to the insured be in force concurrently herewith, making the aggregate indemnity for______ (insert type of coverage or coverages) in excess of $______ (insert maximum limit of indemnity or indemnities), the excess insurance shall be void and all premiums paid for such excess shall be returned to the insured or to his estate; or, in lieu thereof: Insurance effective at any one time on the insured under a like policy or policies in this insurer is limited to the one such policy elected by the insured, his or her beneficiary or his or her estate, as the case may be, and the insurer will return all premiums paid for all other such policies.
4.  A provision as follows:  INSURANCE WITH OTHER INSURERS:
(a) If there be other valid coverage, not with this insurer, providing benefits for the same loss on a provision of service basis or on an expense incurred basis and of which this insurer has not been given written notice prior to the occurrence or commencement of loss, the only liability under any expense incurred coverage of this policy shall be for such proportion of the loss as the amount which would otherwise have been payable hereunder plus the total of the like amounts under all such other valid coverages for the same loss of which this insurer had notice bears to the total like amounts under all valid coverages for such loss, and for the return of such portion of the premiums paid as shall exceed the pro rata portion for the amount so determined.  For the purpose of applying this provision when other coverage is on a provision of service basis, the "like amount" of such other coverage shall be taken as the amount which the services rendered would have cost in the absence of such coverage.
(b) If the foregoing policy provision is included in a policy which also contains the next following policy provision, there shall be added to the caption of the foregoing provision the phrase "Expense Incurred Benefits".  The insurer may, at its option, include in this provision a definition of "other valid coverage", approved as to form by the Insurance Commissioner, which definition shall be limited in subject matter to coverage provided by organizations subject to regulation by insurance law or by insurance authorities of this or any other state of the United States or any province of Canada, and by hospital or medical service organizations, and to any other coverage the inclusion of which may be approved by the Insurance Commissioner.  In the absence of such definition such term shall not include group insurance, automobile medical payments insurance, or coverage provided by hospital or medical service organizations or by union welfare plans or employer or employee benefit organizations.  For the purpose of applying the foregoing policy provision with respect to any insured, any amount of benefit provided for such insured pursuant to any compulsory benefit statute (including any workers' compensation or employer's liability statute), whether provided by a governmental agency or otherwise, shall in all cases be deemed to be "other valid coverage" of which the insurer has had notice.  In applying the foregoing policy provision no third party liability coverage shall be included as "other valid coverage".
5.  A provision as follows:  INSURANCE WITH OTHER INSURERS:
(a) If there be other valid coverage, not with this insurer, providing benefits for the same loss on other than an expense incurred basis and of which this insurer has not been given written notice prior to the occurrence or commencement of loss, the only liability for such benefits under this policy shall be for such portion of the indemnities otherwise provided hereunder for such loss as the like indemnities, of which the insurer had notice (including the indemnities under this policy), bear to the total amount of all like indemnities for such loss, and for the return of such portion of the premium paid as shall exceed the pro rata portion for the indemnities thus determined.
(b) If the foregoing policy provision is included in a policy which also contains the next preceding policy provision, there shall be added to the caption of the foregoing provision the phrase "Other Benefits".  The insurer may, at its option, include in this provision a definition of "other valid coverage", approved as to form by the Insurance Commissioner, which definition shall be limited in subject matter to coverage provided by organizations subject to regulation by insurance law or by insurance authorities of this or any other state of the United States or any province of Canada, and to any other coverage the inclusion of which may be approved by the Insurance Commissioner.  In the absence of such definition, such term shall not include group insurance or benefits provided by union welfare plans or by employer or employee benefit organizations.  For the purpose of applying the foregoing policy provision with respect to any insured, any amount of benefit provided for such insured pursuant to any compulsory benefit statute (including any workers' compensation or employer's liability statute) whether provided by a governmental agency or otherwise, shall in all cases be deemed to be "other valid coverage" of which the insurer has had notice.  In applying the foregoing policy provision, no third party liability coverage shall be included as "other valid coverage".
6.  A provision as follows:  RELATION OF EARNINGS TO INSURANCE:
(a) If the total monthly amount of loss of time benefits promised for the same loss under all valid loss of time coverage upon the insured, whether payable on a weekly or monthly basis, shall exceed the monthly earnings of the insured at the time disability commenced or his average monthly earnings for the period of two (2) years immediately preceding a disability for which claim is made, whichever is the greater, the insurer will be liable only for such proportionate amount of such benefits under this policy as the amount of such monthly earnings or such average monthly earnings of the insured bears to the total amount of monthly benefits for the same loss under all such coverage upon the insured at the time such disability commences and for the return of such part of the premiums paid during such two (2) years as shall exceed the pro rata amount of the premiums for the benefits actually paid hereunder; but this shall not operate to reduce the total monthly benefits payable under all such coverage upon the insured below the sum of Two Hundred Dollars ($200.00) or the sum of the monthly benefits specified in such coverages, whichever is the lesser, nor shall it operate to reduce benefits other than those payable for loss of time.
(b) The foregoing policy provision may be inserted only in a policy which the insured has the right to continue in force subject to its terms by the timely payment of premiums (i) until at least fifty (50) years of age or, (ii) in the case of a policy issued to a person older than forty‑four (44) years of age, for at least five (5) years from its date of issue.  The insurer may, at its option, include in this provision a definition of "valid loss of time coverage", approved as to form by the Insurance Commissioner, which definition shall be limited in subject matter to coverage provided by governmental agencies or by organizations subject to regulation by insurance law or by insurance authorities of this or any other state of the United States or any province of Canada, or to any other coverage the inclusion of which may be approved by the Insurance Commissioner or any combination of such coverages.  In the absence of such definition, such term shall not include any coverage provided for such insured pursuant to any compulsory benefit statute (including any workers' compensation or employer's liability statute), or benefits provided by union welfare plans or by employer or employee benefit organizations.
7.  A provision as follows:  UNPAID PREMIUM:  Upon the payment of a claim under this policy, any premium then due and unpaid or covered by any note or written order may be deducted therefrom.
8.  A provision as follows:  CONFORMITY WITH STATE STATUTES: Any provision of this policy which, on its effective date, is in conflict with the statutes of the state in which the insured resides on such date is hereby amended to conform to the minimum requirements of such states.
9.  A provision as follows:  ILLEGAL OCCUPATION:  The insurer shall not be liable for any loss to which a contributing cause was the insured's commission of or attempt to commit a felony or to which a contributing cause was the insured's being engaged in an illegal occupation.
10.  A provision as follows:  NARCOTICS:  The insurer shall not be liable for any loss sustained or contracted in consequence of the insured's being under the influence of any narcotic unless administered on the advice of a physician.
11.  A provision as follows:  CONTINUITY OF COVERAGE:  If coverage otherwise terminates as to covered family members, other than for nonpayment of premium, nonrenewal of the policy or the expiration of the term for which the policy is issued, a covered person (other than one eligible for Medicare or any other similar federal program), including the spouse and any covered dependent child of the last‑named insured or the representative of such child, shall have the right to the continuation of coverage under provisions which, at the option of the insurer, are consistent with either the continuation of the policy with the person exercising the right of continuation designated as the named insured; or the issuance of a converted policy with the person exercising the conversion right designated as the named insured.  Where continuation of coverage or conversion is made in the name of the spouse of the named insured, such coverage may, at the option of such spouse, include covered dependent children for whom such spouse has responsibility for care and support.  The person who accepts the conversion policy shall become the insured and pay the premiums direct to the insurer.
(a)  Coverage continued through the issuance of a converted policy shall consist of a form of coverage then being offered by the insurer as a conversion policy in the jurisdiction where the person exercising the conversion right resides.  Continued and converted coverages, other than those provided through the exercise of continuation or conversion rights contained in optionally renewable or limited right of renewal contracts, shall contain provisions under which the person exercising the continuation or conversion shall have the right to renew the coverage until the attainment of the age of eligibility for Medicare or any other similar federal or state health insurance program subject to the right of the insurer to nonrenew all such policies in this state as a class, or, other renewal provisions that are not less favorable to the insured than those contained in the policy from which conversion is exercised.
(b)  Coverage provided through continuation or conversion shall be without additional evidence of insurability except as to overinsurance, and shall not impose any preexisting condition limitations or other contractual time limitations other than those remaining unexpired under the policy or contract from which continuation or conversion is exercised.
(c)  Benefits otherwise payable under a converted policy may be reduced so they are not, during the first policy year of the converted policy, in excess of those that would have been payable had the coverage under the policy from which conversion is exercised not terminated, and by the amount of benefits, if any, payable as to the same loss under the policy from which conversion is exercised.
(d)  The insurer shall not be required to issue a converted policy if at the time of application therefor other coverage exists under other health insurance policies, hospital or medical service plan corporation contracts, health maintenance organization plans or self‑insured health benefit plans providing similar benefits, or if the applicant for the converted policy is eligible for coverage under a group policy or contract providing similar benefits, or is provided with similar benefits required by any statute, or is covered under any national, state or governmental plan, which together with the converted policy would result in overinsurance according to the insurer's underwriting standards.
The provisions of this paragraph shall apply to individual family health insurance policies providing hospital, surgical and medical expense benefits or hospital confinement indemnity benefits, individual family hospital and medical service plan corporation contracts, and family health maintenance organization contracts, delivered or issued for delivery in the State of Oklahoma but shall not apply to disability income policies, accidental death or dismemberment policies nor to single‑term, nonrenewable policies.
C.  1.  The terms "noncancelable" and "guaranteed renewable" may be used only in a policy which the insured has the right to continue in force by the timely payment of premiums set forth in the policy until a person is at least fifty (50) years of age, or in the case of a policy issued to a person older than forty‑four (44) years of age, for at least five (5) years from its date of issue, during which period the insurer has no right to make unilaterally any change in any provision of the policy while the policy is in force.
2.  Except as provided in paragraph 1 of this subsection, the term "guaranteed renewable" may be used only in a policy which the insured has the right to continue in force by the timely payment of premiums by the insured until fifty (50) years of age, or in the case of a policy issued to an insured who is older than forty‑four (44) years of age, for at least five (5) years from its date of issue, during which period the insurer has no right to make unilaterally any change in any provision of the policy while the policy is in force, except that the insurer may make changes in premium rates by classes.
The foregoing limitation on the use of the term "noncancelable" shall also apply to any synonymous term such as "guaranteed continuable".
Nothing contained in this subsection is intended to restrict the development of policies having other guarantees of renewability, or to prevent the accurate description of their terms of renewability or the classification of such policies as guaranteed renewable or noncancelable for any period during which they may actually be such, provided the terms used to describe them in policy contracts and advertising are not such as may readily be confused with the above terms.
D.  Inapplicable or Inconsistent Provisions.  If any provision of this section is in whole or in part inapplicable to or inconsistent with the coverage provided by a particular form of policy, the insurer, with the approval of the Insurance Commissioner, shall omit from such policy any inapplicable provision or part of a provision, and shall modify any inconsistent provision or part of the provision in such manner as to make the provision as contained in the policy consistent with the coverage provided by the policy.
E.  Order of Certain Policy Provisions.  The provisions which are the subject of subsections A and B of this section, or any corresponding provisions which are used in lieu thereof in accordance with such subsections, shall be printed in the consecutive order of the provisions in such subsections or, at the option of the insurer, any such provision may appear as a unit in any part of the policy, with other provisions to which it may be logically related, provided the resulting policy shall not be in whole or in part unintelligible, uncertain, ambiguous, abstruse, or likely to mislead a person to whom the policy is offered, delivered or issued.
F.  Third Party Ownership.  The word "insured", as used in this article, shall not be construed as preventing a person other than the insured with a proper insurable interest from making application for and owning a policy covering the insured or from being entitled under such a policy to any indemnities, benefits and rights provided therein.
G.  Employer Designated as Beneficiary.  No employer shall be designated or appointed as beneficiary of an employee or receive any benefits under an individual or group accident and health policy solely by reason of the employer‑employee relationship; provided, however, this subsection shall not prevent the designation or appointment of an employer as beneficiary under a policy of accident and health insurance on any valuable or key employee of such employer.
H.  Requirements of Other Jurisdictions.  1.  Any policy of a foreign or alien insurer, when delivered or issued for delivery to any person in this state, may contain any provision which is not less favorable to the insured or the beneficiary than the provisions of this article and which is prescribed or required by the law of the state under which the insurer is organized.
2.  Any policy of a domestic insurer may, when issued for delivery in any other state or country, contain any provision permitted or required by the laws of such other state or country.
I.  Filing Procedure.  The Insurance Commissioner may make such reasonable rules and regulations concerning the procedure for the filing or submission of policies subject to this article as are necessary, proper or advisable to the administration of this article.  This provision shall not abridge any other authority granted the Insurance Commissioner by law.
SECTION 2.  This act shall become effective November 1, 2010.

52-2-2181	ARE	1/11/2010 2:29:26 PM